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Laws, Rhea H. and Union Planters Bank, NA, Danny Hilal and First Capital Interest L.L.C. v. Bailey, Johnny, Casandra Bailey and Ruby Ford ( 2002 )


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  • Affirmed, in Part, and Reversed and Rendered, in Part, and Opinion filed October 17, 2002

     

    Affirmed, in Part, and Reversed and Rendered, in Part, and Opinion filed October 17, 2002.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-01-00108-CV

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    RHEA H. LAWS, UNION PLANTERS BANK, N.A., DANNY HILAL, and FIRST CAPITAL INTEREST, L.L.C., Appellants

     

    V.

     

    JOHNNY BAILEY, CASSANDRA BAILEY, and RUBY FORD, Appellees

     

      

     

    On Appeal from the 270th District Court

    Harris County, Texas

    Trial Court Cause No. 99-11848

     

      

     

    O P I N I O N

    Rhea H. Laws, Union Planters Bank, N.A., Danny Hilal, and First Capital Interest, L.L.C., appeal the trial court’s judgment in favor of Johnny Bailey, Cassandra Bailey, and Ruby Ford. We affirm, in part, and reverse and render, in part.

                                                                 I. Background

    On February 1, 1994, Johnny Bailey bought a house located in Missouri City from Power Hill Homes.  Bailey paid off the property prior to 1996, but he and his wife, Cassandra, did not live in the house because Bailey played professional football for teams located in other cities.  Instead, Bailey=s mother, Ruby Ford, and his two brothers lived in the house.  Apparently Bailey had arranged for his mother to live in the house while he was playing professional football;  when his football career ended, Bailey would occupy the house and buy a smaller house for Ruby. 

    Although Ruby was responsible for paying property taxes while living in the house, she failed to do so. On May 6, 1996, various taxing authorities[1] filed a lawsuit against Bailey for failure to pay property taxes (the “tax suit”).  Bailey, claiming he knew nothing about the tax suit, never filed an answer.  On August 9, 1996, Bailey conveyed the property by gift deed to Ruby.  On August 12, 1996, a default judgment was entered against Bailey in the tax suit. On July 1, 1997, Danny Hilal purchased the property at a tax sale for $77,849.  On July 4, 1997, Bailey, his wife, and his mother learned of the tax sale when they saw the notice posted on the front door of the house. Bailey then attempted to pay the property taxes at the Tax Assessor-Collector’s office. 

    After obtaining Hilal’s name from the constable=s office, the Baileys contacted Hilal.  On July 10, 1997, Bailey assigned $66,799.21 in excess proceeds to Hilal, who, in turn, agreed to finance the remaining $30,000 to redeem the property. On July 29, 1997, the trial court distributed the excess proceeds to Hilal.  In August 1997, Ruby moved out of the house and the Baileys moved in.  The Baileys claim that after Hilal had received the excess proceeds, he informed them they were going to have to pay rent. Hilal claims he told Bailey about the rent before Bailey assigned the excess proceeds to him.

                At this point, the Baileys sought assistance elsewhere.  Bailey’s agent gave him the name Paul Bellefeuille and his company, Old West Services, Inc.  Bellefeuille met with Johnny and Cassandra Bailey, and Ruby Ford in October 1997. The facts concerning this meeting are disputed.  Bellefeuille asserts Bailey, his wife, and his mother sold the property to Old West Services for $1,000, signing three deeds and powers of attorney on October 2, 1997.  Johnny, Cassandra, and Ruby, on the other hand, claim Bellefeuille presented some documents to them to sign for the purpose of helping them redeem the property, and maintain they did not sign anything selling the property to Old West. Johnny, Cassandra, and Ruby further allege their signatures on the deeds and powers of attorney are forgeries. Bellefeuille and Old West Services never exercised possession over the property.

    When Bailey had not redeemed the property, Hilal obtained a writ of possession on January 15, 1998, from the district clerk pursuant to the judgment in the tax suit.  On January 23, 1998, the constable executed the writ of possession, and the Baileys were evicted from the property.  Hilal then rented the property to other individuals.

    Bellefeuille’s company, Old West Services, received an unsecured loan in the amount of $30,522.79 from Rhea Laws, which it, in turn, paid to the Tax Assessor-Collector on July 7, 1998, to redeem the property.  Old West Services received a receipt for redemption from the Tax Assessor-Collector’s office.  In October 1998, Old West Services sold the property  to Laws for $160,000.  Laws borrowed $108,400 from Union Planters Bank and executed a First Deed of Trust in favor of the bank, and borrowed the remainder from Old West Services, executing a Second Lien Deed of Trust in favor of Old West Services.  Also in October 1998, Hilal conveyed his interest in the property to his company, First Capital Interest, L.L.C. 


    After determining that no one was living in the house, the Baileys moved back in on January 1, 1999. Immediately thereafter, Laws discovered the Baileys were living in the house, and filed suit to quiet title. Bailey, his wife, and his mother filed a bill of review seeking to set aside the default judgment and the subsequent tax sale on the ground that Bailey was not served with citation of the tax suit. 

    The jury found:  (1) Bailey was not personally served with citation in the tax suit; (2) Hilal agreed to finance the redemption of the property in exchange for the assignment of an interest in the excess proceeds, did not comply with that agreement, and did not provide anything of value for the assignment; (3) Hilal converted the Baileys’ personal property when he had them evicted; (4) Bellefeuille and Old West Services did not provide any money in exchange for the deeds or powers of attorney dated October 2, 1997; (5) Bellefeuille and Old West Services agreed to finance the redemption of the property for the benefit of Johnny, Cassandra, and Ruby, but failed to comply with this agreement; (6) Hilal, Bellefeuille, and Old West Services committed fraud against Bailey; (7) Bellefeuille and Old West Services committed fraud against Ruby; (8) the property was the homestead of Bailey, his wife, and his mother; and (9) Laws had notice that Ruby was claiming an interest in the property. 


    In its judgment, the trial court ordered that title to the property be vested in Ruby and the following be set aside and vacated as void: (1) the default judgment entered against Bailey in the tax suit; (2) the foreclosure of the property pursuant to the default judgment; (3) the tax deed to Hilal; (4) the warranty deeds and powers of attorney from Johnny, Cassandra, and Ruby to Old West Services and Bellefeuille; (5) the receipt for redemption issued to Old West Services; (6) the warranty deed from Old West Services to Laws; (7) the first lien deed of trust from Laws to Union Planters Bank; (8) the second lien deed of trust from Laws to Old West Services; and (9) the warranty deed from Hilal to First Capital Interest.  The trial court awarded $10,000 in damages to Bailey on his claim against Hilal for rental payments after the eviction; $25,000 in damages to the Baileys for their conversion claim against Hilal; $20,000 in exemplary damages to Bailey against Hilal; and $2,891.25, plus accrued interest on deposit in the office of the District Clerk, to Bailey for the taxes he paid after the sale of the property.  Finally, the trial court ordered that First Capital Interest, Laws, Union Planters Bank, and the taxing authorities take nothing from Johnny, Cassandra, and Ruby.[2] 

                                                               II. Hilal=s Issues

                                                                       A.  Standing

    In his first issue, Hilal claims Bailey lacked standing to have the tax sale and constable’s deed set aside because he no longer had any interest in the property at the time of the July 1, 1997 tax sale due to the conveyance of the property to Ruby. Standing is determined by a two-prong test.  Standing requires that there “‘(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.’”  Texas Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (quoting Board of Water Eng’rs v. City of San Antonio, 155 Tex. 111, 114, 283 S.W.2d 722, 724 (1955)).  In other words, standing concerns whether the plaintiff is the proper party to bring a cause of action.  Elizondo v. Texas Natural Res. Conservation Comm=n, 974 S.W.2d 928, 932 (Tex. App.CAustin 1998, no pet.). Without the breach of a legal right belonging to the plaintiff, no cause of action has accrued to the plaintiff’s benefit.  Dennis v. First State Bank of Tex., 989 S.W.2d 22, 27 (Tex. App.CFort Worth 1998, no pet.).


    “[P]roperty taxes are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed.”  Tex. Tax Code Ann. ' 32.07(a) (Vernon 2002).  Thus, a person is not relieved of the obligation to pay property taxes because he no longer owns the property.  Id. Hilal does not dispute that Bailey owned the property during the years in which delinquent taxes were assessed and for which the taxing authorities sued.  Conveying the property to Ruby did not relieve Bailey of his obligation to pay the delinquent property taxes.  A personal judgment was entered against Bailey for the delinquent taxes.  See Henson v. City of Corpus Christ, 258 S.W.2d 343, 343B44 (Tex. Civ. App.CSan Antonio 1953, writ ref’d) (stating personal judgment can be taken against defendant for delinquent taxes when defendant was shown to be owner of property at time tax was assessed).  We conclude that because Bailey was the owner of the property at the time the taxes were assessed and a personal judgment was taken against him, he had standing to bring the bill of review seeking to set aside as void the default judgment taken against him and the resulting tax sale.  Hilal’s first issue is overruled. 

                                                                 B.  Lack of Service

    In his third issue, Hilal claims the trial court erred in reversing the default judgment against Bailey and setting aside the tax sale and constable=s deed for lack of service of citation because there was no corroborating evidence or testimony that Bailey had not been properly served.  The return of service states Bailey was served with the tax suit on July 3, 1996.  A return of service valid on its face raises a presumption that the statements contained in the return are true.  HCFCO, Inc. v. White, 750 S.W.2d 23, 24 (Tex. App.CWaco 1988, no writ).  It is prima facie evidence of the facts recited therein.  Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam); G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 816 (Tex. App.CHouston [1st Dist.] 1996, no writ).  The testimony of the moving party alone without corroborating facts or circumstances will not overcome the presumption that the officer’s return on the citation was correct.  Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972); Martin v. Ventura, 493 S.W.2d 336, 339 (Tex. Civ. App.CTyler 1973, no writ).  The corroborating evidence need not be direct, but may be wholly circumstantial. Cortimiglia v. Miller, 326 S.W.2d 278, 285 (Tex. Civ. App.CHouston 1959, no writ).  The question of lack of service is a question of fact to be determined by the fact finder. Ward, 488 S.W.2d at 738; HCFCO, Inc., 750 S.W.2d at 24. 


    Bailey and his wife testified they were not living on the property at the time of the tax suit. Ruby, who was living on the property at the time of the tax suit, testified she did not receive any papers in connection with the tax suit.  Ruby also explained she did not tell Bailey she had not paid any property taxes even though she was responsible for them while she lived there.  Bailey contends it is reasonable to assume he would pay less than $10,000 in taxes due on a house he owned free and clear and for which he took less than two years to pay off.  Bailey also attempted to pay $2,891.25 in taxes when he learned of the delinquency. This is some evidence of facts or circumstances corroborating Bailey’s claim that he was not served with the tax suit.  See Min v. Avila, 991 S.W.2d 495, 503 (Tex. App.CHouston [1st Dist.] 1999, no pet.) (finding testimony that party had moved two years before service, had discontinued electrical service, and another person with different name lived at residence on day of attempted service, among other evidence, established independent facts and circumstances to corroborate claim of lack of service); Harrison v. Sharpe, 210 S.W. 731, 732B33 (Tex. Civ. App.CAmarillo 1919, writ ref’d) (finding actions of owners were inconsistent with knowledge of existence of tax suit and corroborated claim of lack of service); cf. Cortimiglia, 326 S.W.2d at 285B86 (finding testimony of witnesses did not corroborate claim of no service because such testimony was self-serving and hearsay).


                Hilal further complains Bailey did not present a meritorious defense to the tax suit in the bill of review proceeding or evidence that he exercised due diligence in paying the outstanding taxes prior to the entry of the default judgment.  To succeed in a bill of review, the petitioner must ordinarily show (1) a meritorious claim or defense to the cause of action supporting the earlier judgment, (2) which he was prevented from asserting by the fraud, accident, or mistake of the opposing party, or official mistake, (3) unmixed with any fault or negligence of his own.  Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407B08 (Tex. 1987). However, when the bill of review seeks to set aside the default judgment as void for lack of service, the petitioner is not required to prove either a meritorious defense or fraud, accident, or mistake by the opposing party.  Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 693 (Tex. App.CCorpus Christi 2000, pet. denied); Axelrod R & D, Inc. v. Ivy, 839 S.W.2d 126, 128 (Tex. App.CAustin 1992, writ denied).  Therefore, Bailey was not required to prove a meritorious defense or that he exercised due diligence in the bill of review proceeding.  Hilal’s third issue is overruled. 

                                                                     C.  Conversion

    In his second issue, Hilal claims the evidence is legally and factually insufficient to support the jury’s finding on conversion.[3]  When reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the jury’s finding, disregarding all contrary evidence and inferences.  Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).  A “no evidence” point will be sustained if here is no more than a scintilla of evidence to support the finding.  Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). In conducting a factual sufficiency review, we must examine the entire record, considering both the evidence in favor of and contrary to the challenged finding, and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998). 


    Conversion is the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights.  Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 391 (Tex. 1997); Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971).  Hilal asserts there was no conversion of the Baileys’ personal property because the possession of such property was lawful pursuant to a writ of possession.  There is no unlawful possession where the property is removed from the premises pursuant to a valid writ.  See, e.g., Campos v. Inv. Mgmt. Props., Inc., 917 S.W.2d 351, 354 (Tex. App.CSan Antonio 1996, writ denied) (finding no wrongful assumption of dominion and control over property where appellee was legally authorized to remove property from premises and writ of possession was carried out in compliance with statute); Conroy v. Manos, 679 S.W.2d 124, 125 (Tex. App.CDallas 1984, writ ref’d n.r.e.) (finding no conversion where writ of restitution provided for constable to enter building and “peaceable possession thereof [be] restore[d] to plaintiff”); Guyer v. Guyer, 141 S.W.2d 963, 968B69 (Tex. Civ. App.CAmarillo 1940, writ ref’d) (finding no conversion where sheriff removed property from premises under valid writ of possession, no other party asserted claim to or ownership of property or exercised dominion or control over it, and plaintiff made no demand for its return).  Here, the writ of possession commands the sheriff or constable to Adeliver to the said DANNY HILAL, the possession of said property or properties hereinbefore described, as against the said JOHNNY BAILEY, JR., and all persons claiming under or through HIM since the institution of this suit.@

    Bailey and his wife, however, contend Hilal did not evict them under a valid writ of possession. Specifically, they argue Hilal was entitled to only one writ of possession under the judgment in the tax suit, which was issued and executed immediately following the purchase of the property at the July 1, 1997 tax sale, but “[a]fter that, he must go to justice court.”  On July 10, 1997, Bailey assigned the excess proceeds to Hilal, who, in return, agreed to finance the remaining $30,000 to redeem the property.  Therefore, the constable’s return on the first writ of possession, accordingly, states:  “I SPOKE WITH MR. HILAL WHO INFORMED ME THAT HE HAS WORKED OUT AN AGREEMENT WITH THE OCCUPANT.  THERE IS NO NEED TO CONTINUE ON WITH THE POSSESSION.”  The Baileys moved into the house in August 1997.  Hilal had the Baileys evicted on January 23, 1998, pursuant to a second writ of possession. 

    In support of their assertion that Hilal was entitled to only one writ of possession, the Baileys rely on Section 33.51 of the Tax Code, which states: 


    If the court orders the foreclosure of a tax lien and the sale of real property, the judgment shall provide for the issuance by the clerk of said court of a writ of possession to the purchaser at the sale or to the purchaser=s assigns no sooner than 20 days following the date on which the purchaser=s deed from the sheriff or constable is filed of record. 

     

    Tex. Tax Code Ann. ' 33.51 (Vernon 2002) (emphasis added).  The judgment in the tax suit tracks the language of section 33.51.[4]  While section 33.51 generally refers to “a writ of possession,” it contains no language limiting the issuance of only one writ of possession to the purchaser of the property.  We hold the possession of the Baileys’ personal property was lawful pursuant to the writ of possession. 

    The constable took possession of the Baileys= personal property and subsequently had it placed in storage.  According to the constable=s return, the Baileys were advised of where their property was to be stored and how they could reclaim their property.[5]  Bailey testified he orally complained to the storage company about his missing property, but he did not complain to the constable=s office.  There is no evidence Hilal exercised any dominion or control over the Baileys= personal property or that Hilal was the party upon whom they were required make a demand for the return of their property.  We find under these circumstances there was no conversion of the Baileys’ personal property by Hilal.  Hilal=s second issue is sustained.

                                                                D.  Excess Proceeds

    In his fourth issue, Hilal claims the trial court erred in awarding damages to Bailey and Ruby against Hilal on the excess proceeds.  The jury was asked what sum of money would compensate Bailey and his mother in excess proceeds for Hilal’s breach of the agreement and fraud.  The jury answered $66,799.21 for both Bailey and Ruby.  The trial court=s judgment, however, did not award any damages for excess proceeds to Bailey or Ruby.  Hilal’s fourth issue is overruled. 

                                                                          E.  Fraud

    In his fifth issue, Hilal claims the evidence is legally and factually insufficient to support the jury’s finding that he committed fraud against Bailey.  The elements of fraud are: (1) a material misrepresentation, (2) that was false, (3) that was either known to be false when made or without knowledge of the truth, (4) that was intended to be acted upon, (5) that was relied upon, and (6) that caused injury.  Formosa Plastics Corp. U.S.A. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). 

    Bailey alleges Hilal promised to finance the redemption of the property in exchange for the assignment of the excess proceeds. Hilal, however, claims Bailey conceded they never reached an agreement to finance the redemption of the house. Hilal complains in the absence of an agreement regarding the financing of the remaining $30,000, the jury could not have found that Bailey relied on any representations made by him.  Bailey testified Hilal agreed to finance the remaining $30,000 for the redemption of the property in exchange for the assignment of the excess proceeds.  Bailey also testified he and Hilal never reached an agreement on terms for financing the remaining $30,000.  The Assignment of Interest in Excess Proceeds, supports Bailey=s claim that he and Hilal had an agreement.  It states:

    Johnny Bailey, Jr. intends to redeem the above described real property, utilizing in part the excess proceeds currently being held in the registry of the court. . . . In order to accomplish their contemplated redemption, Johnny Bailey, Jr. hereby assigns all of his rights, title and interest in and to the excess proceeds held in the registry of the court to Danny Hilal, or according to his direction. 

     

    The jury found Hilal agreed to finance the redemption of the property in exchange for an assignment of interest in the excess proceeds, and Hilal breached that agreement.  The jury was entitled to resolve in favor of Bailey any contradictions in the testimony presented.  In any event, Hilal does not challenge the jury=s finding that there was an agreement or that he breached the agreement. 

    After Bailey had assigned the excess proceeds to Hilal, he and his wife moved into the house. According to Bailey=s testimony, Hilal did not inform him that he was going to charge rent until after Bailey had assigned the excess proceeds to him.  When Bailey asked Hilal to return the proceeds, Hilal refused.  After Bailey failed to redeem the property, Hilal had the Baileys evicted.  The evidence is legally and factually sufficient to establish reliance.

    Hilal further complains that Bailey, having conveyed the property to Ruby prior to the tax sale, did not own any interest in the property and, therefore, the excess proceeds would have belonged to Ruby; thus, Bailey could not have assigned the excess proceeds to him and could not have been injured by any alleged misrepresentation. The excess proceeds, however, were not the only damages found by the jury to have been sustained by Bailey as a result of Hilal=s fraud.  The jury also found Bailey sustained $10,000 in damages for rent he paid after Hilal evicted him and Cassandra from the property.  Hilal=s fifth issue is overruled.

                                                                 III. Laws’ Issue

                                                            A.  Bona Fide Purchaser

    In his sole issue, Laws claims the evidence is legally and factually insufficient to support the jury=s finding that he had notice of Ruby=s claim to the property, thereby precluding his status as a bona fide purchaser of the property.  In response to the bill of review, Laws asserted he was a bona fide purchaser. 

    Status as a bona fide purchaser is an affirmative defense to a title dispute.  Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (per curiam). Because Laws challenges a finding on an issue on which he had the burden of proof, he must demonstrate the evidence conclusively established, as a matter of law, all vital facts in support of the issue.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam).  In reviewing a matter of law challenge, we must first examine the record for evidence supporting the jury=s finding, while ignoring all evidence to the contrary.  Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).  If there is no evidence to support the fact finder=s answer, we then examine the entire record to determine if the contrary proposition is established as a matter of law.  Id. We may sustain the matter of law challenge only if the contrary position is conclusively established.  Dow Chem. Co., 46 S.W.3d at 241. 

    Because Laws challenges the factual sufficiency of an adverse finding on which he had the burden of proof, he must demonstrate on appeal that the adverse finding is against  the great weight and preponderance of the evidence. Id. at 242.  In reviewing a complaint that the jury’s finding is against the great weight and preponderance of the evidence, we must examine the entire record to determine if there is some evidence to support the finding.  Oadra v. Stegall, 871 S.W.2d 882, 892 (Tex. App.CHouston [14th Dist.] 1994, no writ).  Only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, must we sustain the challenge.  Id.


    To qualify as a bona fide purchaser, one must acquire the property in good faith, for value, and without notice of any third party claim or interest.  Madison, 39 S.W.3d at 606.  Notice may be either actual or constructive.  Id.  A purchaser has actual notice if he has or should have express knowledge of an adverse right, or if such knowledge should be implied.  Jones v. Fuller, 856 S.W.2d 597, 603 (Tex. App.CWaco 1993, writ denied); see also City of Richland Hills v. Bertelsen, 724 S.W.2d 428, 430 (Tex. App.CFort Worth 1987, no writ) (defining actual notice as “when a person actually knows the facts charged to him, or should have known them if he had inquired about them, after learning of facts which put him on inquiry”).[6]  Actual notice is ordinarily a question of fact, but becomes a question of law where there is no room for reasonable minds to differ as to the proper conclusion to be drawn from the evidence.  Hicks v. Loveless, 714 S.W.2d 30, 33 (Tex. App.CDallas 1986, writ ref’d n.r.e.). 

    Laws contends Ruby presented only circumstantial evidence he was aware of her claim being asserted against the property, which provides nothing more than basis for surmise, guess, or conjecture and, therefore, is not sufficient to support the jury=s finding that he had actual notice.  Laws claims at the time he made the $30,522 unsecured loan to Bellefeuille to redeem the property, Bellefeuille told him the property had been subject to a tax sale, but did not tell him about Bailey, his wife, and his mother. Laws claims he knew  the loan was going to redeem some property, but it was not until his deposition in this case that he learned it was this property that had been redeemed.

    Bellefeuille testified as to what he told Laws about the tax sale and the Baileys:

    Q.        Well, now, this $30,000 was used to redeem this property, right?

     

    A.        That is correct.

    Q.        And Rhea later bought this property, right?

    A.        That is correct.

    Q.        Now, isn’t it a fact that at the time Rhea put up the $30,000, you had told him all the details about this property?

     

    A.        That’s correct.

    Q.        Okay. And you had told him about your arrangements with the Baileys.

     

    A.        That’s correct.

    Q.        You told him you had gotten instruments from them which put you in a position to resell the property.

     

    A.        That’s correct.

    Q.        Did you tell him that you had paid either $1,000 or nothing for the property? Did you tell him that?

     

    A.        I told him I paid a thousand for the property.

                                                                       *        * *

    Q.        When did thisCwhen did you first talk to him about the property?

     

    A.        June, July of >98.

    Q.        Okay. Now, you testified you told him all the details about the property, right?

     

    A.        That’s correct.

    Q.        Did you tell him why you didn=t have possession of the property?

     

    A.        Yes, sir, I did.

    Q.        And what was that explanation you gave to him?

    A.        I told him it had been foreclosed on at a tax sale.

    Q.        He knew there was a tax sale involved in this.

    A.        Yes, sir.

    Q.        Did you tell him who the people were that lost the property at the tax sale?

     

    A.        I imagine I did, you know.  I=m sure I did.  I don=t remember verbally saying the name Bailey or Ford but I=m sure I did. 

                                                                       *        * *

    Q.        Did [Laws] say anything about the details of the tax suit?

    A.        I told him what I knew about the tax suit. 


    The jury was entitled to believe Bellefeuille’s testimony that he told Laws about Johnny, Cassandra, and Ruby having lost the property in a tax sale and disregard Laws= testimony that he did not know the money he lent Bellefeuille was to for the redemption of this property.  Laws and Bellefeuille had a business relationship; Bellefeuille worked for Laws as a mortgage broker.  Johnny, Cassandra, and Ruby testified they did not sell the property to Bellefeuille, but, instead, Bellefeuille represented to them that he would help them finance the redemption of the property.  Given the relationship between Laws and Bellefeuille, the jury could reasonably infer that Laws knew Johnny, Cassandra, and Ruby had not sold the property to Old West.  This issue is overruled. 

                                                                 IV.  Conclusion

    The trial court erred in awarding the Baileys $25,000 in damages on their claim for conversion against Hilal.  Therefore, we reverse that portion of the judgment and render judgment that Johnny and Cassandra Bailey take nothing on their conversion claim against Hilal. The remainder of the judgment is affirmed.  Accordingly, the trial court=s judgment is affirmed, in part, and reversed and rendered, in part. 

     

     

     

    /s/        J. Harvey Hudson

    Justice

     

     

     

    Judgment rendered and Opinion filed October 17, 2002.

    Panel consists of Justices Hudson, Fowler, and Edelman.

    Do Not Publish C Tex. R. App. P. 47.3(b).


    [1]  Those taxing authorities are Houston Independent School District, Harris County, Harris County Education Department, Port of Houston of Harris County Authority, Harris County Flood Control District, Harris County Hospital District, City of Houston, and Houston Community College System.

    [2]  After the trial, Bellefeuille and Old West Services settled with Johnny, Cassandra, and Ruby for $40,000, which expressly excluded damages for rental payments and loss of personal property. 

    [3]  The trial court allowed the Baileys to file a trial amendment adding a cause of action for conversion.  The limitations period for a cause of action for conversion is two years.  Tex. Civ. Prac. & Rem. Code Ann. ' 16.003(a) (Vernon Supp. 2002); Hofland v. Elgin-Butler Brick Co., 834 S.W.2d 409, 413 (Tex. App.CCorpus Christi 1992, no writ).  The Baileys were evicted on January 23, 1998, and the trial amendment was filed on September 19, 2000.  Hilal complains he did not have an opportunity to plead limitations as an affirmative defense.  Hilal, however, does not show where in the record he attempted to plead statute of limitations or otherwise provide any argument or authority in support of this complaint.

    [4]  The judgment in the tax suit states, in relevant part:

    And it is further ORDERED, ADJUDGED and DECREED by the Court that the Clerk of this Court, if requested by the purchaser, pursuant to Section 33.51 of the Texas Property Tax Code, issue a writ of possession to the land above described and ordered sold, as provided for by law, ordering the Sheriff or proper officers to place the purchaser or purchasers, or their heirs, executors, administrators and assigns, in possession of the property so purchased, or any part thereof, at the sale provided for in this judgment.

    (Emphasis added).

    [5]  The constable=s return states ATHE LOCKS WERE CHANGED AND THE TENANTS WAS [sic] GIVEN A NOTICE ADVISING THEM WHERE THEIR PROPERTY WAS TO BE STORED AND HOW TO RECLAIM SAME.@  (Emphasis in original).

    [6]  The trial court submitted a question to the jury on the issue of actual notice, but not on the issue of constructive notice. Constructive notice is notice the law imputes to a person not having personal information or knowledge.  Madison, 39 S.W.2d at 606.